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Salvaterra Trucking, LLC v. Ljs Construction

January 4, 2013

SALVATERRA TRUCKING, LLC, PLAINTIFF,
v.
LJS CONSTRUCTION, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
BROCKWELL & CARRINGTON CONTRACTORS, INC., THIRD-PARTY DEFENDANT/ APPELLANT, AND BERKLEY REGIONAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4784-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 11, 2012

Before Judges Fisher and Waugh.

Third-party defendant Brockwell & Carrington Contractors, Inc. (Brockwell), appeals the Law Division's order granting summary judgment to third-party plaintiff LJS Construction, LLC (LJS), on its claim for payment for trucking services supplied to Brockwell. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Brockwell served as general contractor for the construction of the New Jersey Public Health Agricultural and Environmental Laboratory (Laboratory) in Ewing. It subcontracted with Caro Corporation (Caro) to perform excavation and soil removal work on the site. Caro subcontracted with Salvaterra Trucking, LLC (Salvaterra), to provide the trucks and transport the soil.

Upon determining that more trucks were needed for the project, George R. Danielson, a Brockwell manager, contacted LJS on July 31, 2008, seeking extra trucks for use at the site. Brockwell and LJS entered into an oral agreement requiring LJS to provide the additional trucking services, beginning the following day, for a premium fee. LJS then retained Salvaterra to provide the trucks and move the soil.

Although Salvaterra provided trucks to LJS and performed the required work, it stopped providing trucks to Caro and apparently supplied LJS with the same trucks it had been using to perform its subcontract with Caro. As a consequence, Brockwell did not obtain the net increase in the number of trucks available for use on the project.

Salvaterra billed LJS for the work it performed. LJS subsequently submitted invoices to Brockwell, seeking payment under the terms of the oral agreement. Brockwell took the position that LJS had breached their agreement by utilizing the Salvaterra trucks already on site and under contract with Caro. In Brockwell's view, LJS failed to provide "additional" trucking services because the same Salvaterra trucks were already on site. Thus, Brockwell advised LJS that it would pay only the hourly rate called for by its contract with Caro, rather than the higher rate under LJS's contract.

In June 2010, Salvaterra filed a complaint against LJS seeking payment for the work it had performed. LJS answered and filed a third-party complaint against Brockwell, seeking damages for breach of contract. Brockwell answered, alleging misrepresentation, mutual mistake of fact, and lack of consideration.

In November 2011, LJS moved for summary judgment against Brockwell, which motion was opposed. The motion judge granted the motion in December. Brockwell's motion for ...


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